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Judge Weighs Order To Rewrite Zoning

Both Sides Surprised in Loudoun Fight

By Michael Laris

Washington Post Staff Writer
Saturday, April 16, 2005; Page B06

A Loudoun County judge indicated yesterday that he might order Loudoun officials to rewrite zoning rules following a controversial Virginia Supreme Court decision last month, a move that could block development applications in parts of the county for months while officials did so.

Yesterday, in his first hearing on implementing the Supreme Court's March 3 decision, Circuit Court Judge Thomas D. Horne also allowed a group of landowners who support strict development limits to intervene in the county's long-running legal battle over growth.

Virginia's Supreme Court invalidated strict building limits Loudoun officials passed in January 2003, saying the county had provided a misleading description of the area covered by the rules in a required advertisement.

Horne's moves shook up, at least until his promised ruling next week, an effort by Loudoun officials and attorneys for pro-development plaintiffs to persuade Horne to agree with their view of how the Supreme Court's decision should be applied.

Loudoun County Attorney John R. Roberts and John Foote -- a lawyer who represents developers, some landowners and others who have been fighting the building curbs -- argued that Horne should restore the old zoning in effect before the 2003 changes.

But Horne questioned that logic, saying he did not want to set Loudoun's zoning from the bench.

"I don't zone property. That's not my function," Horne said, adding that the proper place for hashing out such policies is in the "cauldron of public debate."

"This was a major rezoning. The pieces of the puzzle are all interconnected," he said, before wondering aloud whether ordering the county to return to its previous zoning would "create havoc."

The 2003 zoning struck down by the Supreme Court required 10, 20 or 50 acres per home in a 300-square-mile, semirural area between Dulles International Airport and the Blue Ridge Mountains. The old rules generally allowed one home per three acres in that area.

Foote argued that recent Supreme Court precedent meant the judge should order the return of three-acre zoning by deleting the 2003 rules. "It's like taking a big eraser and making it go away," Foote said.

Foote said he was concerned that his clients might be prevented from seeking new subdivisions for months, even though they prevailed at the Supreme Court.

"That doesn't feel a lot like winning," Foote said.

Philip Strother, an attorney for 25 landowners who support the tighter rules, said precedent called for Horne to rule that the semirural land was left without zoning after the Supreme Court's decision. Strother said the county should be given time to fix the advertisement or institute other replacement zoning.

Horne agreed early in the hearing that Strother could join the proceedings on behalf of his clients.

Roberts said he was concerned that if Horne ruled that western Loudoun had no zoning, that could result in applications by landowners seeking permission for unregulated building. "I have a Board of Supervisors concerned about having unzoned land out there," Roberts said.

Foote said unzoned land would mean that owners "are not constrained," but he added that he was certain that in such a situation, Horne would order a stay on any development in the affected area, pending the board's adoption of new rules.

Malcolm Baldwin, one of the landowners Horne allowed to intervene, said the judge had provided a victory. "Now we have a seat at the table," Baldwin said. "Listening to the arguments, it was hard to tell who was the developer and who was the county."